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Of Meese and [the Nine Old] Men
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10249 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
8 / 1986 |
4,658 Words |
| Author
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Philip B. Kurland
Philip B. Kurland is the William R. Kenan, Jr. Distinguished
Service Professor at the University of Chicago Law School.
This paper is reprinted by permission of The Washington
Institute for Values in Public Policy. |
At the end of the 1984 term, the Supreme Court of the United States handed down several opinions in which it purported to apply the provisions of the religion clauses of the First Amendment. These cases immediately evoked a great deal of adverse commentary from the usual sources: newspaper and TV savants, pedants, preachers in their pulpits, and solons on the floors of various legislative bodies. Such an effect, of course, is not at all decision. These critical panjandrums always know all the proper answers to everything and not least to the issues presented to the Supreme Court for resolution. What might be considered unusual this time, however, was the reason for the challenges. Essentially the complaint was that the Court had adhered to stare decisis and followed its own precedents.
The argument of the critics was that the Court should have abandoned the heresies it had perpetrated in its earlier readings of the First Amendment and substituted what the critics claimed to be the "original intention" of the framers. The tone of criticism was somewhat reminiscent of Martin Luther's demands for a return to the Bible and away from perversions of truth committed by the Pope.
Much of the critics' feelings may be explained by disappointed expectations. The Court had in immediately prior terms been moving away from its earlier concept of "separation" of church and state towards a form of concordat, which it labeled "accommodation." (The movement towards "accommodation" had really begun with the accession of Mr. Chief Justice Burger and had been accelerating throughout his tenure.) In these 1984 opinions, the Court had betrayed the promise implicit in earlier judgments that soon the state would be allowed to succor the churches or of least their educational branches. Ironically, this anticipation of change rested originally not so much on Mr. Meese's call for "original intention" as on Mr. Justice Brennan's position that: "When Justices interpret the Constitution they speak for their community, not for themselves. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought." I am not sure that the good Justice appreciated that he was resounding the words of Lord Bryce in his American Commonwealth, written late in the nineteenth century, when he said:
By placing the Constitution above both the National and the State governments, [it] has referred the arbitrament of disputes between them to an independent body, charged with the interpretation of the Constitution, a body which is to be deemed not so much a third authority in the government
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